Question 2: A test for Citizens United

  • David Barrows of Washington holds a flag covered in money and corporate logos during a demonstration outside at the Supreme Court in Washington, Oct. 8, 2013, as the court heard arguments on campaign finance. AP FILE PHOTO

For the Gazette
Published: 11/5/2018 12:05:20 AM

BOSTON — Would a citizen advisory commission created if Massachusetts voters approve Question 2 be an effective step toward a national repeal of the controversial 2010 Supreme Court ruling Citizens United allowing unlimited expenditures on political campaigns?

The commission would first study “the nature and impact of political and election spending in Massachusetts” and “any limitations on the state’s ability to regulate corporations and other entities in light of Supreme Court decisions,” such as Citizens United, according to the information for voters available on the Massachusetts Secretary of State’s website.

It would then recommend amendments to the U.S. Constitution “to establish that corporations do not have the same constitutional rights as human beings and that campaign contributions and expenditures may be regulated.”

The advisory commission, which would consist of 15 unpaid, qualified Massachusetts residents, would be required to issue its first report by Dec. 31, 2019, before being handed out to state lawmakers, Congress, and the president for consideration.

Four states have passed nonbinding resolutions calling for the repeal of Citizens United in 2012 and 2016 — but implementing a commission would be a first.

Maurice Cunningham, an associate professor of political science at UMass Boston, said the “deregulatory atmosphere” related to campaign spending observed over the past decades is a result of a post-Watergate era of tightened regulations.

“We’ve regulated corporate spending since at least 1907 in this country,” he said. “It’s the court in the last few decades that has gone in a different direction.”

“(The rulings) are challenges to campaign finance law, trying to undo some of the regulations that came in, particularly in the wake of the Watergate scandals in the 1970s,” he added. “There were renewed regulations and restrictions, and those with a lot of money did not like these restrictions and they thought to get them reversed.”

In 1974, the Federal Election Campaign Act was amended to limit the amount of money that could be donated to campaigns and candidates, order the disclosure of contributions and create the Federal Election Commission to enforce those restrictions.

Two years later, the Supreme Court decision Buckley v. Valeo ruled unconstitutional limits on election spending by candidates and campaigns as they would infringe on freedom of speech.

‘Really bad idea’

Paul Craney, spokesman for the Massachusetts Fiscal Alliance, a self-styled nonpartisan, nonprofit organization that holds “Beacon Hill lawmakers accountable to their voting record on … taxes, spending, the budget and transparency” said it is “very unlikely” that, even if Question 2 were to pass, the Massachusetts commission’s work would lead to an overruling of Citizens United.

“First of all, how are you getting a bunch of people together, including elected officials? And you’re asking them ‘How do you silence speech?’ That’s a really bad idea,” Craney said.

As a 501(c)4 organization, the alliance can participate in political campaigns and accept donations for charitable, educational or recreational purposes without disclosing its donors — which aims at preventing donor intimidation but has led critics to accuse the organization of partisan bias and “dark money activities.”

Outlining its stance on the online voter guide, the alliance declares “The controversy surrounding the Citizens United decision hinges on our cherished right to Freedom of Speech. The First Amendment protection of our Freedom of Speech is one of the pillars of our democracy and should be preserved and expanded at every possible opportunity. The less government standing in the way of the exercise of that right, the stronger it is.”

According to Craney, there is no logical argument behind the repeal of Citizens United, a ruling he said has been beneficial to multiple actors on the political scene.

“When you look at campaign finance law, there’s two things you want to look at very closely: One, ‘Is the proposed law or law on the books fair?’; and ‘Is it clear?’” he said. “Citizens United is both.”

“It allows all entities — employers, unions and individuals — to have the same level of speech if they choose to engage,” he added. “Democrats and Republicans, conservatives and liberals and everything else in between, they all can use … Citizens United to have their voices being as loud as they wish.”

‘Continue the conversation’

Pamela Wilmot, the executive director of Massachusetts Common Cause, a nationwide organization that aims to register citizens to vote, believes the commission will be a successful way to advance the national discussion on Citizens United.

“The commission isn’t designed to achieve that goal of amending Citizens United,” Wilmot said. “The goal is to continue the conversation about it, to increase education about it amongst people in the commonwealth to look further on how to achieve that goal and what specific language might be best.”

“It’s just a question of getting the appointments, and have the people appointed being enthusiastic about their job, and to follow through,” she added. “So, I have no doubt that if this is passed that we’ll get the good people on the commission, and it will do its work.”

Massachusetts Common Cause, like many other opponents of Citizens United, disagrees with what has been called corporate personhood — when corporations and individuals are considered as equals from a legal standpoint.

“We don’t believe that corporations do have the same rights as individuals. They’re not citizens,” Wilmot said. “Citizens cannot live forever, they’re not shielded from immunity. (Corporations) cannot be incarcerated. There’s a whole bunch of privileges that corporations have.”

For Wilmot, the ruling also represents too much leniency toward money’s influence in politics.

“The Citizens United decision and a subsequent one called ‘Speech NOW’ have resulted in a tremendous influx of money being poured into our elections that previously have been excluded,” Wilmot said.

“That’s a problem because there’s a lack of accountability,” Wilmot added, “and no one who actually is in the real political world believes that political expenditures on behalf of a candidate don’t have some influence in the governing process.”

According to Cunningham, Question 2 is “largely symbolic but valuable for a statement against Citizens United,” even if the end goal still seems far away.

“It’s a long way to get that kind of thing done,” he said. “The ultimate aim is a constitutional amendment. We’ve only had 27 of them in our history.”

Alice Ferre writes for the Gazette from the Boston University Statehouse Program.


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